The 2009 SB 360 Recently Found To Violate Florida Constitution
In order to assist economic recovery in communities, the 2009 Community Renewal Act provided alternatives to transportation concurrency requirements. Recently the Act was ruled unconstitutional after some local governments sued to stop the changes.”
The 2009 SB 360 RECENTLY FOUND TO VIOLATE FLORIDA CONSTITUTION
In 2009, Senate Bill 360 (or SB 360), the Community Renewal Act, was enacted into law. It is a growth management law intended, among other things, to assist local communities’ economic recovery. It also addressed related problems such as expiration of expensive permits due to inactivity during the economic downturn. SB 360 also addressed a growing recognition that, over a period of years, growth management “concurrency” requirements had resulted in the unintended consequence of urban sprawl because developers spread development into less expensive outlying areas instead of paying for more expensive upgrades to infrastructure within existing developed areas.
To address that concurrency consequence, the Florida Legislature made an effort to shift the emphasis from requiring transportation concurrency to a new transportation “mobility” model that would emphasize a number of strategies to help people become more mobile with less reliance upon individual automobile use (a result that was unintentionally encouraged by the ever expanding road systems resulting from concurrency requirements). New “mobility fees” were proposed to expand transportation alternatives like mass transit instead of just new road expansion.
To reduce the cost disincentive of steering growth to existing developed areas like cities (where concurrency often makes development cost-prohibitive) SB 360 designated Dense Urban Land Areas (DULA’s) and Transportation Concurrency Exemption Areas (TCEA’s) where alternatives to concurrency would apply instead, thereby encouraging economic development in existing communities instead of promoting sprawl into more rural areas where concurrency costs are lower.
However, a number of local governments, including Lee County, objected to some of the provisions of SB 360. One reason was the “unfunded mandate” objection: i.e., that contrary to the Florida Constitution the State was requiring local governments to take expensive actions with more than an insignificant fiscal impact without also providing new ways to pay for those mandates. They also expressed concerns about losing road impact fee revenues and the possible effects of increased traffic on county roads from cities that qualified as DULA’s or TCEA’s.
In 2009 about 20 cities and counties filed suit in City of Weston v. Crist challenging the adoption of SB 360. Seven areas of unfunded mandates were listed:
a. Mandated adoption of comp plan amendments and transportation strategies “to support and fund mobility;”
b. Litigation expenses and increased cost of road improvements due to elimination of transportation concurrency;
c. Litigation expenses and administrative costs of the two-year permit extension provision of the law;
d. Expenses for formal mediation to resolve inter-governmental coordination disputes;
e. Elimination of the Developments of Regional Impact (DRI) process that might transfer the cost of mitigating such impacts onto local governments;
f. The requirement to give 90-day notice of impact fee increases would increase costs to local governments for annual publication of notices and drafting of resolutions and hearings; and
g. The prohibition against local government adopting security camera regulations to enhance police services might result in the transfer of costs from business owners to local taxpayers that would increase local government costs.
After a year of preliminary motions, the local governments filed a motion for summary judgment arguing that there were no significant factual issues in dispute and that, without a trial, the court could decide the legal issues on the seven allegedly unfunded mandates. The State argued that the seven areas were either insignificant or were not mandates, and that more facts must be presented at trial. On six of the seven points the court emphatically agreed with the State that issues of material fact would require a trial. However, the court concluded that, to process and adopt SB 360 required comp plan amendments and transportation strategies to support and fund mobility would cost each local government at least $15,000(and might range as high as $41,264 to $104,170). Based on the definition of “insignificant” mandate costs being no more than ten cents times the average statewide population (or essentially $1,860,000 total) the 246 local governments would spend at least $3,690,000 to address the mandates, so the court decided that even though SB 360 “fulfills an important state interest,” the unfunded amount of those mandates was not “fiscally insignificant,” and overturned the law.
Another notable provision of SB 360 had allowed the extension of existing development permits for another 2 years without the need to go through any expensive, time-consuming approval process. In 2010, anticipating the possibility of an adverse ruling in this case, the State adopted SB 1752 (also known as the SB 360 Glitch Bill) which ratified those 2-year permit extensions, and authorized another 2-year extension which may serve to extend permits that fell through the cracks in 2009. However, unless City of Weston v. Crist is reversed on appeal, or legislatively resolved by providing funding to pay for the mandates, the Legislature’s new creative strategies to cure the unintended consequences of transportation concurrency will not be available to local governments.
For more information contact:
Steven C. Hartsell
Katherine R. English
Irene Kennedy Quincey